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REPUBLIC OR EMPIRE? 

&n argument 



IN OPPOSITION TO THE ESTABLISHMENT 

OF AN AMERICAN COLONIAL 

SYSTEM 



JAMES W. STILLMAN 



BOSTON 
George H. Ellis, Printer, 272 Congress Street 

1900 






£"7/3 



70060 



REPUBLIC OR EMPIRE? 



One of the various arguments which are advanced by the 
advocates and the supporters of the President's policy of 
territorial expansion is that the commercial interests of the 
United States imperatively demand that the markets of the 
old world should be thrown open to our surplus products. 
This is the principal ground upon which Senator Beveridge 
of Indiana, in his recent speech in the Senate, sought to 
justify the war which the Federal administration is now 
waging against the inhabitants of the Philippine Islands. 
As this speech is said correctly to represent the views of 
the President and of his coadjutors, it is worthy of more 
serious consideration than it would command were it merely 
an expression of the individual opinions of its author ; and 
for that reason the writer of this article will inquire whether 
or not a colonial system can be inaugurated by the United 
States consistently with the fundamental principles upon 
which our Government was founded. 

Conceding for the purpose of this discussion the truth 
of all that the Senator has said concerning the great advan- 
tages which would accrue to our people by creating an 
increased demand for their manufactures and other products 
among the inhabitants of our so-called " new possessions," 
the question as to how a colonial system can be established 
or maintained under our Constitution as it now reads must 
first be considered ; for no legislation by Congress which 
is contrary to the provisions of, or is forbidden by, that 
instrument can be valid and binding upon our citizens. 
If, after a careful examination thereof, it should appear that 
such a system is authorized thereby, we may then decide 
whether or not it ought to be adopted ; and if we should be 
convinced that colonies would be advantageous to us we 
may proceed to establish them. If, however, that system 
is contrary to the Constitution, the first step to be taken in 



that direction must be to amend that instrument accordingly, 
if such an amendment can and will accomplish that result, — 
a question which will be considered in a subsequent part of 
this article. 

It becomes necessary, therefore, to examine the nature 
of the Federal Government and to ascertain what are the 
powers which it may rightfully exercise. It is a funda- 
mental principle of our political system that all sovereignty 
resides in and flows from the people and that no power 
can be rightfully exercised by any department of the Gov- 
ernment which is not conferred upon it by the Constitution 
either expressly or by necessary implication. So important 
was this principle considered by the people of the United 
States that very soon after the Constitution was adopted 
Article X. of the Amendments thereto was submitted by 
Congress to the Legislatures of the several States and 
ratified by a sufficient number thereof to insure its adoption 
as a part of that instrument. That Article reads as follows : 

"The powers not delegated to the United States by the 
Constitution, nor prohibited by it to the States, are reserved 
to the States respectively, or to the people." 

As the Government established by the Constitution is 
one of limited scope, we are thus led to inquire whether or 
not there is any provision thereof which authorizes Congress 
to establish or to maintain colonies or provinces in various 
parts of the world. Before examining the provision thereof 
by which this power is alleged to have been conferred upon 
that body it is necessary to call the attention of the reader 
to the preamble thereto which specifies the purposes for 
which that instrument was ordained and established, as 
all legislation by Congress in order to be valid must be in 
accordance with, and not repugnant to, those purposes. 
That preamble is in the following words : — 

" We, the people of the United States, in order to form a 
more perfect Union, establish justice, insure domestic tran- 
quillity, provide for the common defence, promote the gen- 
eral welfare, and secure the blessings of liberty to ourselves 



and our posterity, do ordain and establish this Constitution 
for the United States of America." 

It will be perceived that according to its preamble the 
Constitution was ordained and established " for the United 
States of America" and not for any other part of the hab- 
itable globe. How, then, can it be extended beyond our 
boundaries unless it be so amended as to allow that to be 
done, even if that be possible ? And as the Government 
instituted by it rests upon the consent of the governed, 
having only such powers as they have granted thereto, how 
can any other people be made subject to it without their 
consent also ? But even if this could be done consistently 
with the body of the Constitution, the question would 
arise whether or not a colonial system is consistent with 
the purposes thereof as specified in the preamble thereto. 
It certainly cannot be reasonably contended that to govern 
any people without their consent and against their protests 
is " to form a more perfect Union " or " to establish justice." 
Neither can it be truthfully said that to do so is " to insure 
domestic tranquillity," "to provide for the common defence" 
or " to promote the general welfare." " To secure the 
blessings of liberty to ourselves and our posterity" does 
not mean to secure those blessings to the people of other 
countries however desirable that may be ; and still less 
does it justify us in depriving them of "the blessings of 
liberty." The purposes for which the Constitution was 
ordained and established, therefore, cannot be fulfilled by 
the establishment of a colonial system ; and consequently, 
it is clearly unconstitutional ; and for that reason, if for no 
other, the policy to which the President is now endeavor- 
ing to commit the citizens of the United States ought to be 
immediately abandoned. 

But admitting for the purpose of this argument that a 
colonial system is not inconsistent with the preamble to the 
Constitution, let us next inquire whether or not there is any 
clause thereof which provides for or authorizes it. The 
words of that instrument which are usually referred to by 
those persons who contend that Congress possesses sovereign 



power over the Territories are contained in Clause 2 of 
Section 3 of Article IV., which reads as follows : — 

" The Congress shall have power to dispose of and make 
all needful rules and regulations respecting the territory or 
other property belonging to the United States ; and nothing 
in this Constitution shall be so construed as to prejudice any 
claims of the United States or of any particular State." 

The first power therein conferred upon Congress is "to 
dispose of the territory or other property belonging to the 
United States." What do these words signify? When 
speaking of territory or of land which cannot be destroyed, 
they must mean to give away, to cede, to sell or to- lease; 
and no other meaning can properly be attached to them. 
The second power therein granted to Congress is " to make 
all needful rules and regulations " respecting said territory or 
or other property. It is a well-established rule that in con- 
struing a constitutional provision or a statute its words 
must always have the same meaning which they had at the 
time when they were used therein. Applying that rule to 
the construction of this clause, we are compelled to conclude 
that it had reference only to the land then owned by the 
Federal Government and not to those political communities 
which are now called "Territories," because at that time there 
were no such political communities claimed to be under our 
jurisdiction; and therefore, the word " territory " could not 
then have had the additional meaning which since has been 
and now is ascribed to it by those persons who contend that 
the clause confers upon Congress the power of instituting 
territorial governments over, or of legislating for, the inhab- 
itants of the public domain. If the members of the Consti- 
tutional Convention had intended to apply this word to such 
Territories as' might thereafter be established, they certainly 
would have used it in the plural instead of in the singular 
number, thereby removing all doubt as to the meaning 
which they intended to convey. On this point the Supreme 
Court has expressed its opinion in the case of United States 
v. Gratiot ct a/., 14 Peters, 526, 537, in which it said: — 



" The term ' territory,' as here used, is merely descriptive 
of one kind of property and is equivalent to the word 
'lands.'" 

That the word " territory," as used in this clause means 
land only is made perfectly clear when the three following 
words "or other property" are considered, as they mani- 
festly refer to a different kind of property ; and no one will 
seriously contend that the people who resided on the public 
domain at the time when the Constitution was adopted were 
"property belonging to the United States" ; for if they had 
been so, Congress would have had the power " to dispose 
of" them, which means to give them away, to sell them into 
slavery, to banish them or to exterminate them ; and it is 
unreasonable to believe that such a power as this is was in- 
tended to be conferred by the Constitutional Convention 
upon Congress. So to construe the clause is equivalent to 
saying that all of those people were then neither more nor 
less than slaves owned by the Federal Government which 
was not the case ; although there were a few slaves who 
were the private property of certain citizens of some of the 
States in the Union. A construction of a constitutional 
provision which is so manifestly absurd as this is cannot be 
the correct one. But even if the convention had intended 
to establish and could have established the institution of 
slavery on the public domain, the Constitution as it now 
reads does not recognize but actually prohibits property in 
human beings and abolishes every form of slavery and in- 
voluntary servitude within the United States or any place 
subject to their jurisdiction except as a punishment for 
crime whereof the party shall have been duly convicted.* 

It is true that here is a provision for " needful rules and 
regulations" ; but these words cannot apply to persons but 
are limited to " the territory or other property belonging to 
the United States " ; and therefore, they cannot authorize 
either civil or criminal legislation for the inhabitants of the 
Territories. Rules and regulations respecting property cannot 
include laws for people ; and all that Congress can rightfully 
do under this clause in reference to the public land is to 

* Article XIII. of the Amendments. 



8 

provide for surveying, improving, cultivating or leasing it;* 
and these rules and regulations can have force only while 
this territory belongs to the United States. Whenever it is 
sold it ceases to be property belonging to the United States ; 
it becomes property belonging to individuals. It ceases to 
be public property ; it becomes private property ; and Con- 
gress, whenever it sells this territory, parts with its juris- 
diction over it.f 

The territory is here referred to as property "belonging 
to " the United States ; but that does not imply that it is 
necessarily a part of the United States unless it be within 
the boundaries of the States in the Union. This being true, 
that portion of the public domain which is without those 
boundaries constitutes no part of the nation but is merely 
its property ; and all legislation by Congress relating to it 
must treat it only as such property; while all political juris- 
diction over the people who reside on public land within the 
Union which has not been ceded to the Federal Government 
by the Legislatures of the States wherein it is situated, is 
vested in the Governments of those States, as will now be 
proven. 

Having shown that this clause relates to property only, 
it does not justify the United States Government in assum- 
ing jurisdiction over the people who occupy the public land ; 
for if it did, that jurisdiction would extend to all the land 
within as well as without the boundaries of the States 
which is the property of the United States. But it has been 
held by the Supreme Court in Fort Leavenworth Railroad 
Company v. Lozue, 114 U. S., 525, that the Federal Govern- 
ment has no jurisdiction over people dwelling upon this land 
unless that has been expressly ceded to it by the Legislatures 
of the States in which it is located. J If the words " to make 
all needful rules and regulations respecting the territory or 
other property belonging to the United States " confer upon 
Congress the power to legislate for residents upon public 
land, these words must apply to all of this land wherever is 

•For a further exposition of the meaning of these words see the opinion of Mr. Justice 
Campbell in the case of Dred Scott v. Sandford, ig Howard, page 514. 
t Carrotlv. Sajjford, 3 Howard, 441, 1 

I on, 225. 



its location ; and as the Constitution and the laws of the 
United States made in pursuance thereof are the supreme 
law of the Union, the power of legislation thus conferred, if 
Congress should choose to exercise it, would supersede the 
jurisdiction of every State in which there is territory belong- 
ing to the United States over the people who occupy it. 
But according to the decision of the Supreme Court just 
cited, the mere ownership of land in the States by the 
Federal Government does not deprive these States of their 
jurisdiction over these people, thus establishing the proposi- 
tion for which the writer contends, — that the authority of the 
United States over its citizens does not arise from the mere 
possession of the territory upon which they reside and 
that the words in question do not grant to Congress the 
power of legislation for the inhabitants of the Territories. 

Additional light is thrown upon the meaning of the words 
already considered by the latter part of the clause, which 
reads as follows: "and nothing in this Constitution shall 
be so construed as to prejudice any claims of the United 
States or of any particular State." These words refer only 
to the conflicting claims of the Federal and the State Gov- 
ernments of the Union to certain land included in the ces- 
sions made by the treaty of peace between the United States 
and Great Britain and have no relation to political juris- 
diction over the people who then resided or might there- 
after reside upon that land. It- is evident that the whole 
clause relates to property and to nothing else ; and it was 
not intended to and does not grant to Congress authority 
to organize governments over, or to legislate for, the people 
of the Territories. How, then, can colonies be established 
or maintained by virtue of this constitutional provision ? 

That this construction of the clause under consideration 
is the correct one is made evident when the words thereof 
are contrasted with those of Clause 17 of Section 8 of 
Article I., which reads as follows : — 

" The Congress shall have power to exercise exclusive 
legislation in all cases whatsoever, over such District (not ex- 



10 

ceeding ten miles square) as may, by cession of particular 
States, and the acceptance of Congress, become the seat of 
the Government of the United States, and to exercise like 
authority over all places purchased by the consent of the 
Legislature of the State in which the same shall be, for 
the erection of forts, magazines, arsenals, dock-yards, and 
other needful buildings." 

It will be perceived that there is a marked difference 
between the phraseology of the first and that of the second 
of these two clauses. In one the Constitution speaks of 
" disposing of " and " making needful rules and regulations 
respecting property " ; and in the other it uses the words 
"legislation" and "authority," both of which imply govern- 
ment for people. It is clear, therefore, that the meanings of 
these two provisions are not identical with, but are widely 
different from, each other and that the powers conferred by 
them are not the same but are separate and distinct. If 
the framers of the Constitution had intended that Congress 
should legislate for the Territories in the same manner in 
which it does for the District of Columbia and the other 
places mentioned in the last clause above quoted, they 
ought to and certainly would have used the same or similar 
words in both instances ; and the fact that such words were 
not so used by them is conclusive evidence that they did not 
intend that Congress should exercise the same authority 
over the people of the Territories which it does over those 
of the above-mentioned District. 

It may be said that if the consent of the governed is 
necessary under the Constitution, that principle was violated 
by compelling the citizens of the District of Columbia to 
submit to a government in which they were to have no voice. 
It is a sufficient answer to this suggestion to say that when 
the Constitution was ratified by the States of Virginia and 
Maryland out of which that District was composed, they did 
so with a perfect knowledge of the clause above quoted and 
that when they ceded to the United States the land which 
formerly constituted that District, those cessions were made 
with the full consent of the inhabitants thereof and that 



1 1 

their Successors acquiesced and still acquiesce in the Gov- 
ernment thus provided for them by voluntarily remaining in 
that District. So far as the people of the Territories likewise 
consent to be governed by the United States they suffer no 
injustice; but that fact does not prove that such a govern- 
ment is authorized by the Constitution ; and as these people 
had no part in the formation of that instrument and as they 
have never ratified it they are not and cannot be bound by 
it if they should choose not to be so bound. 

Although in the deeds executed by certain of the thir- 
teen original States ceding territory to the Confederation, 
there were clauses granting to it the jurisdiction as well as 
the soil, this jurisdiction could be exercised only in accord- 
ance with such provisions as the Articles of Confederation 
contained or with such others as might be incorporated into 
the new Constitution ; and the latter, as has been already 
shown, provides that Congress shall have the power to dis- 
pose of and to regulate the territory as property only and not 
to legislate for the inhabitants thereof either as citizens or 
■as subjects; and in regard to the territory and the jurisdic- 
tion ceded to the United States by North Carolina on Feb- 
ruary 25, 1790, and by Georgia on April 24, 1802, and also 
that ceded thereto by treaties with France, Spain, Mexico 
and Russia, all of which occurred since the adoption of the 
Constitution, the same principle applies with equal force.* 

The writer contends that the Federal Government has no 
rightful political jurisdiction or authority over any other 
persons than our own citizens, although he concedes that 
foreigners or aliens residing within our boundaries have no 
right to violate either the Federal or the State Constitutions 
or laws and can be rightfully punished for so doing.f He 
also contends that the Constitution and the laws of the 
United States made in pursuance thereof do not and cannot 
be made to extend over any persons who are not citizens of 
the United States and that such persons cannot be governed 
thereby without their free consent. If this contention be 

* This paragraph is taken from the writer's article entitled "Territorial Sovereignty," which 
was published in Tlie Green Bag for January, 1899, page 2S. 
t Wildenhus's Case, 120 U. S., 1. 






12 

true, it becomes necessary to determine whether or riot the 
inhabitants of the Territories are now or can hereafter 
become such citizens. As to what constitutes a citizen of 
the United States it is manifest that no man who was born 
and has always resided in Arizona for instance, of parents 
who had always been inhabitants of that Territory, can be 
or become one until after the Territory shall have been 
admitted into the Union as a State, for the reason that a 
Territory is not a State and therefore not a part of the 
United States, in which, according to Article XIV. of the 
Amendments to the Constitution, all persons must be born 
or naturalized in order to be or to become such citizens. 
The Supreme Court has held in Hooe v.Jamieson, \66 U. S., 
395, that a resident of the District of Columbia cannot bring 
an action against a citizen of a State in a Federal court be- 
cause he is not himself a citizen of a State ; and that is also 
true of a resident of a Territory.* For these reasons the 
writer contends that the Territories are not a part of the 
United States ; and in support of that contention he will 
quote the following sentences from a speech delivered in the 
Senate on Thursday, February 2, 1899, by Senator Spooner 
of Wisconsin, who is one of the ablest constitutional law- t 
yers in Congress: — 

"The United States as a sovereignty derives its powers 
from the States and consists of the States. The Terri- 
tories are not a part of the United States. They are not 
members of the Federal, Union." f 

It is true that Chief Justice Marshall, in Loughborough v. 
Blake, 5 Wheaton, 317, 319, referring to the words "United 
States," asserted that "It is the name given to our great 
republic which is composed of States and Territories"; 
but that was a mere dictum of his Honor ; for the question 
as to the political status of the Territories was not before 
him for adjudication in that case; and the only one arising 
therein was whether or not Congress had authority to im- 
pose a direct tax on the District of Columbia in proportion 

• .Vci' Orleans v. Whiter, 1 Wheaton, 91. 

1 Congressional Record, 3d Session, Fifty-fifth Congress, page 1379. 



13 

to the census directed to be taken by the Constitution, 
which was decided in the affirmative. 

That a resident of a Territory is not a citizen of the 
United States is made perfectly clear by the Article just 
referred to, the first section of which reads as follows : — 

" All persons born or naturalized in the United States, 
and subject to the jurisdiction thereof, are citizens of the 
United States and of the State wherein they reside. No 
State shall make or enforce any law which shall abridge 
the privileges or immunities of citizens of the United States ; 
nor shall any State deprive any person of life, liberty, or 
property, without due process of law, nor deny to any 
person within its jurisdiction the equal protection of the 
laws." 

Previous to the adoption of this Amendment there were 
no citizens of the United States as such but only those of 
the States ; and this Amendment did not change the law in 
that respect except to create National, in addition to State, 
citizens and to secure to persons of African descent the 
political rights which previously had been denied to them ; 
but it was not intended to and did not apply to persons 
residing outside of the boundaries of the forty-five States. 
If it was thereby designed to include the people of the 
Territories, why were not the words " or Territory" inserted 
after the word " State " in the first sentence thereof ? 
According to Prof. C. C. Langdell, Dane professor of law 
in Harvard University, "The authors of the Fourteenth 
Amendment contemplated only States ; for, if they had 
contemplated Territories as well, they certainly would have 
said 'citizens of the State or Territory in which they 
reside.'"* The words "and of the State wherein they re- 
side" may mean that every citizen of the United States must 
also be a citizen of a State or that each citizen of a State 
must reside in that State in order to be a citizen thereof. 
The latter meaning is the one which was given to them by 
Mr. Justice Miller in his opinion in the Slaughter-House 
Cases, 16 Wallace, 36, 74; but whichever is their true mean- 

* Harvard Law Review, Vol. XII., page 376. 



14 

ing there can be no national citizenship outside of the States 
composing the Union. It is true that the Article contains 
the words "and subject to the jurisdiction thereof"; but 
they are not words of enlargement but are those of limi- 
tation of the class born in the United States and were 
inserted therein so as to exclude children born of parents 
who were or might be subsequently residing here as repre- 
sentatives of other nations. On this point his Honor, on 
page 73, said : — 

"The phrase 'subject to its jurisdiction' was intended to 
exclude from its operation children of ministers, consuls 
and citizens or subjects of foreign States born within the 
United States." 

According to this decision these words do not include 
either the inhabitants of the District of Columbia or those 
of the Territories ; and therefore, those inhabitants were not 
made citizens of the United States by this Amendment if 
they had not been so before its adoption. 

It is true that a part of Mr. Justice Miller's construction 
of the words "and subject to the jurisdiction thereof" has 
been overruled by the court in the case of United States v. 
Wong Kim Ark, 169 U. S., 649, in which it was held that a 
person born in the United States of parents who are sub- 
jects of the Emperor of China but have a permanent domi- 
cile and residence in the United States and are there en- 
gaged in business and are not employed in any diplomatic or 
official capacity under the Government of China, is a citizen 
of the United States and of the State wherein he was born 
and may thereafter reside. But as this case arose in the 
State of California the question whether or not the people 
of the Territories are citizens of the United States was not 
and could not have been raised ; and therefore, it was not 
and could not have been decided therein. It never has 
been held by the Supreme Court that a person born in a 
Territory is a citizen of the United States within the mean- 
ing of the Constitution independently of treaty stipulations 
or of statutory provisions or otherwise than in the broad 
sense of those words which will presently be indicated. 



15 

In regard to the words "any place subject to their juris- 
diction," which occur in Article XIII. of the Amendments to 
the Constitution, the writer holds that they can refer only to 
the District of Columbia and to the other places mentioned 
in Clause 17 of Section 8, of Article I., whatever may have 
been the intention of the authors of that Amendment, as 
those places are the only ones within or without the States 
in which the United States has exclusive jurisdiction over 
persons. If these words can properly be applied to the 
Territories they must mean that these Territories are out- 
side of the United States and therefore not a part thereof. 
If, however, the Territories are a part of the United States 
these words are entirely unnecessary, as the Amendment, 
abolishes slavery and involuntary servitude in every part of 
the United States. 

The statement above made that the people of the Terri- 
tories are not citizens of the United States means that they 
are not so in the strict constitutional sense of those words, 
although in their international and common law sense those 
people are such citizens. As their allegiance has been trans- 
ferred with their own consent from their former sovereign to 
this nation, they are now under its jurisdiction and are sub- 
ject to the Governments established for them by Congress ; 
and while they enjoy the right of regulating their own in- 
ternal and domestic affairs, they have no voice in governing 
the United States except that of representation in the Fed- 
eral House of Representatives by a Territorial Delegate. 
That they were not made full citizens of the United States 
by the mere cession thereto of the Territories in which they 
reside is evident from the fact that in each of the treaties of 
annexation, except the last two, there was an article which 
provided that the inhabitants of the ceded Territory should 
be incorporated in the Union of the United States and ad- 
mitted as soon as possible according to the principles of the 
Federal Constitution to the enjoyment of all the rights, ad- 
vantages and immunities of citizens of the United States. 
The treaty between the United States and Russia ceding 
Alaska to this country provided that the inhabitants thereof, 



i6 

with the exception of uncivilized native tribes, should be 
admitted to the enjoyment of all the rights, advantages and 
immunities of citizens of the United States ; but it did not 
provide that they should be incorporated into the Union. 
The recent treaty of peace between the United States and 
Spain provided that the civil rights and the political status 
of the native inhabitants of the Territories thereby ceded to 
the United States should be determined by Congress. Thus 
it appears that the makers of these several treaties did not 
believe that the inhabitants of these Territories would be- 
come citizens of the United States in the strict constitu- 
tional sense of those words by the mere operation of the 
Constitution and without an express provision in each treaty 
to that effect. So that while according to international 
law they are American citizens, they are not and cannot 
become full citizens of the United States until after the 
Territories in which they reside shall have been admitted 
into the Union as States.* 

Many other considerations might be presented in support 
of the construction which has been herein placed upon the 
above-quoted constitutional provisions ; but these are amply 
sufficient in order to prove it to be the correct one. The 
writer is aware, however, that this construction is contrary 
to certain decisions which have been rendered by the. 
Supreme Court ; and although those decisions must be con- 
sidered as a part of the fundamental law of the nation until 
they shall have been reversed by that tribunal or until they 
shall have been abrogated by a constitutional amendment, 
he nevertheless feels perfectly justified in dissenting from 
the conclusions of the court therein expressed. It is un- 
necessary to consider all of these decisions, as there is no 
material difference between them ; and therefore, these ob- 
servations will be confined to only three of them, those hav- 
ing been cited and approved by the court in most of its sub- 
sequent opinions relating to this question. The first is the 
one rendered by Chief Justice Marshall in The American In- 
surance Company v. Canter, i Peters, 511,542, in which his 
Honor said : — 

'v. Thayer, 143 U. S., 135. '37- 



17 

" In the meantime, Florida continues to be a territory of 
the United States, governed by virtue of that clause in the 
Constitution, which empowers Congress 'to make all needful 
rules and regulations respecting the territory or other prop- 
erty belonging to the United States.' Perhaps the power of 
governing a territory belonging to the United States, which 
has not, by becoming a State, acquired the means of self- 
government, may result necessarily from the facts, that it is 
not within the jurisdiction of any particular State, and is 
within the power and jurisdiction of the United States. The 
right to govern, may be the inevitable consequence of the 
right to acquire territory. Whichever may be the source 
whence the power is derived, the possession of it is un- 
questioned." 

It will be noticed that his Honor here asserts that Florida 
continues to be governed as a Territory by virtue of the 
property clause of the Constitution ; but he does not say that 
she had been rightfully so governed ; nor does that appear 
to be his opinion ; for he immediately proceeds to try to 
justify that government on other grounds. If this clause is 
sufficient for that purpose why was it necessary for him to 
mention any other source of the power under consideration ? 
But being not satisfied on this point his Honor proceeds to 
argue the case still further and begins his next sentence 
with the word "perhaps," which is a strange one for a judge 
to use in a decision of an important question of constitu- 
tional law, as it indicates a doubt in his mind as to the truth 
of his own assertions ; and the same observation applies with 
equal force to the word "may," which appears later in the 
same sentence. He also inserts the article "a," before the 
word "territory," thereby changing its meaning from land 
to a political community which is not the sense in which it 
was used in the Constitution, as has been already shown in 
this article. He then assumes that a Territory cannot 
acquire the means of self-government except by becoming a 
State, — an assumption which is entirely unwarrantable, as 
there is every reason to believe that its inhabitants are as 
competent to establish their own Government as were the 



18 

people of the thirteen original States to do likewise ; and 
this was actually done by the people of California, Congress 
having neglected to provide a government for that Territory 
before it became a State. His next reason for thinking that 
the alleged authority of Congress over the Territories may 
exist is that as, they are not within the jurisdiction of any 
particular State in the Union they must be within that of 
all of them combined under the Federal Government, which 
is assuming the truth of the very proposition which is in dis- 
pute. But if no State alone has any such jurisdiction, it is 
difficult to perceive how all of them together can possess it, 
as nothing, although multiplied by any number, remains 
nothing still. His Honor's last reason for thinking that 
Congress may possess this extraordinary power is that it 
"may be the inevitable consequence of the right to acquire 
territory." This is merely another assumption on his part 
and is totally wanting in proof ; for although the United 
States like any other nation in the world has an undoubted 
right to obtain land by purchase or by cession from another 
country or from individuals, the right to govern the people 
who reside upon it can be derived only from their consent 
thereto. Thus it appears that of the three sources of the 
power to govern the Territories mentioned by the court it is 
unable to determine which is the true one ; and it is uncertain 
as to all of them. Notwithstanding these facts the court as- 
serts that " Whichever may be the source whence the power 
is derived, the possession of it is unquestioned," — an assertion 
which was not then true and is not so to-day, as that always 
has been questioned by some persons and denied by others ; 
and yet upon this weak decision nearly all the subsequent 
ones relating to this question have been based. 

The next opinion of the Supreme Court which will be 
here considered is that delivered by Chief Justice Waite in 
National Bank v. County of Yankton, 101 U. S., 129, 132, 
from which the following sentences are quoted : — 

" It is certainly now too late to doubt the power of Con- 
gress to govern the Territories. There have been some 
differences of opinion as to the particular clause of the 



19 

Constitution from which the power is derived, but that it 
exists has always been conceded. The Territories are but 
political subdivisions of the outlying dominion of the United 
States. All territory within the jurisdiction of the United 
States not included in any State must necessarily be gov- 
erned by or under the authority of Congress. That body 
has full and complete legislative authority over the people 
of the Territories and all departments of the territorial 
governments. It may do for the Territories what the 
people under the Constitution may do for the States." 

It will be perceived that at the time when this opinion 
was written his Honor thought that it was "too late" to 
doubt the existence of the power in question, thus implying 
that there had been a time when it was not too late to do so, 
which is equivalent to saying that a power may exist the 
source of which is doubtful. This assertion also implies 
that although of doubtful origin, such a power may become 
perfect by lapse of time and by the acquiescence of the 
people. If this doctrine be true, the Constitution is not a 
fixed and invariable rule of conduct for public officers but 
changes more or less as the years come and go, — a con- 
clusion which the writer is unable to accept. His Honor's 
next assertion is that " There have been some differences of 
opinion as to the particular clause of the Constitution from 
which the power is derived, but that it exists has always 
been conceded." This statement leads one to inquire, How 
can there be any difference of opinion as to which of several 
constitutional provisions is the one which confers upon a 
department of the Government a particular power if any 
one of them does so ? To suggest doubts as to the meaning 
of the words of the Constitution is to reflect seriously upon 
the literary ability of its authors and also to impair the 
confidence of the people in it as a guide to all civil officers 
who are required to administer it. The next assertion in 
this opinion that the existence of the power under considera- 
tion "has always been conceded" is merely a repetition in 
other words of Chief Justice Marshall's statement on the 
same point ; and therefore, it is unnecessary to repeat what 



20 

has already been said thereon. The proposition that " All 
territory within the jurisdiction of the United States not 
included in any State must necessarily be governed by or 
under the authority of Congress " is true ; but it applies 
only to the District of Columbia and to the other places 
mentioned in Clause ij of Section 8 of Article I. of the 
Constitution, those being the only places in which exclu- 
sive jurisdiction over persons has been ceded by the States 
to the Federal Government. The affirmation that " Con- 
gress has full and complete legislative authority over the 
people of the Territories and all the departments of the 
territorial governments " is merely the conclusion fol- 
lowing from those which precede it ; and as those are 
erroneous this is erroneous also. The other sentences 
above quoted, like the ones already examined, are mere 
assertions supported by no proof whatever ; and so it is 
unnecessary to comment thereon. One of the most remark- 
able features of this opinion is the fact that from the 
beginning to the end thereof no allusion is made to the 
property clause or to any other provision of the Constitu- 
tion nor is any previous decision of the court cited therein 
to support it. This fact appears to constitute an admis- 
sion on the part of the court that the power in question, 
if it exist at all, does so outside and not inside the Con- 
stitution ; and in that admission the writer concurs, although 
he denies that it exists anywhere. 

The last opinion of the court which will be here com- 
mented upon is that delivered by Mr. Justice Bradley in 
Mormon Church v. United States, 136 U. S., i, in which his 
Honor on page 42, said : — 

"The power of Congress over the Territories of the 
United States is general and plenary, arising from and inci- 
dental to the right to acquire the Territory itself and from 
the power given by the Constitution to make all needful rules 
and regulations respecting the Territory or other property 
belonging to the United States. It would be absurd to hold 
that the United States has power to acquire territory and no 
power to govern it when acquired. The power to acquire 



21 



territory, other than the territory northwest of the Ohio 
River, (which belonged to the United States at the adoption 
of the Constitution,) is derived from the treaty-making power 
and the power to declare and carry on war. The incidents 
of these powers are those of national sovereignty and belong 
to all independent governments. The power to make acqui- 
sitions of territory by conquest, by treaty and by cession is 
an incident of national sovereignty." 

It is worthy of notice that in this opinion two sources of 
the power in question are alleged by the court to exist : first, 
the right to acquire territory, which it says is an incident of 
national sovereignty and second, the property clause of the 
Constitution. This fact suggests the inquiry, Why should 
there be two sources of a particular authority when one is 
sufficient ? If Congress can govern the inhabitants of any 
territory by virtue of the right to acquire it no such consti- 
tutional provision is necessary. Whether or not this doc- 
trine is true has already been considered in this article ; and 
therefore, it is unnecessary to repeat our observations on 
that subject. The simple fact that the court relies upon 
this doctrine in order to support its opinion is conclusive 
evidence to prove that it does not really consider the 
property clause as granting to Congress the authority to es- 
tablish governments over, or to legislate for, the people of 
the Territories, which is precisely what the writer contends. 
All of the other decisions of the court on this question are 
equally inconclusive; and in none of them does it show how 
the jurisdiction of the United States can be made to extend 
beyond its limits without the consent and against the pro- 
tests of the people of other countries who are sought to be 
subjected to our authority ; and if Congress should be con- 
vinced that the court is in error in these decisions, it will be 
under no obligation whatever to exercise the power under 
consideration. It ought also to be remembered that the 
judgments of the Supreme Court, although entitled to re- 
spectful consideration by the other departments of the Gov- 
ernment and by the people, are binding upon the inferior 
courts and upon the parties litigant ; although they are not 



22 

obligatory upon Congress in any sense but like all other 
arguments are addressed to its discretion. Whenever a 
decision of that tribunal in the opinion of the legislative 
branch of the Government is subversive of the rights and 
the liberties of our citizens or is otherwise erroneous it is 
not only the right but also the imperative duty of that 
body to disregard it. Congress, therefore, is bound to con- 
sider the constitutionality of every measure which is brought 
before it ; and it should be guided in its action thereon by 
its own judgment on that question. 

One of the arguments which are advanced in favor of the 
exercise of the authority in dispute is that the controversy 
as to its existence has been settled by the long-established 
practice of the Government, that whether the decisions of 
the court thereon are right or wrong they have been 
accepted by both Congress and the people and that they 
cannot now be properly controverted. But when we remem- 
ber the fact that the court has reversed its previous decisions 
in the legal tender, in the income tax and in other cases 
and when we also realize that this question will probably in 
the near future again be brought before that tribunal for 
further consideration and adjudication, there is no reason 
why the continued discussion thereof ought to be considered 
as either useless or unwise. The fact that during the past 
few years there has been a decided tendency on the part of 
the Government to depart from both the letter and the spirit 
of the Constitution and to enlarge the powers granted to it 
thereby is no justification for a further departure in the 
same direction. On the contrary, this fact affords the best 
of reasons why that tendency ought to be counteracted as 
much as that can possibly be done and why all public officers 
should be held to a strict obedience to the fundamental law 
of the nation from which alone all their powers are derived. 

Before passing to the next branch of the argument, the 
writer will quote the opinion of one of the most distinguished 
Republican statesmen whom this country has produced in 
support of his contention that a colonial system is not pro- 
vided for, or authorized by, the Constitution. He alludes to 



! " w a 



23 

William H. Seward of New York, who, in a speech in the 
Senate on a bill to admit New Mexico into the Union, on 
July 26, 1850, said : — 

"It is a remarkable feature of the Constitution of the 
United States that its framers never contemplated Colonies 
or Provinces or Territories at all. On the other hand, 
they contemplated States only, nothing less than States, 
perfect States, equal States, as they are called here, sov- 
ereign States. . . . There is reason — there is sound politi- 
cal wisdom in this provision of the Constitution excluding 
Colonies, which are always subject to oppression and exclud- 
ing Provinces which always tend to corrupt and enfeeble and 
ultimately to break down the parent State." * 

The Supreme Court has also expressed its opinion on this 
subject in the case of Dred Scott v. Sandford, 19 Howard, 
393, 446, 447, in which it said : — 

"There is certainly no power given by the Constitution to 
the Federal Government to establish or maintain colonies 
bordering on the United States or at a distance, to be ruled 
and governed at its own pleasure, nor to enlarge its terri- 
torial limits in any way, except by the admission of new 
States. That power is plainly given ; and if a new State is 
admitted, it needs no further legislation by Congress, be- 
cause the Constitution itself defines the relative rights and 
powers and duties of the State, and the citizens of the State 
and the Federal Government. But no power is given to 
acquire a Territory to be held and governed permanently in 
that character." 

Again, in the same case, the court said : — 

" The power to expand the territory of the United States 
by the admission of new States is plainly given ; and in the 
construction of this power by all the departments of the 
Government, it has been held to authorize the acquisition of 
territory, not fit for admission at the time, but to be admitted 
as soon as its population and situation would entitle it to 
admission. It is acquired to become a State, and not to be 
held as a colony and governed by Congress with absolute 

•Works, Vol. I., p. 122. 



24 

authority ; and as the propriety of admitting a new State is 
committed to the sound discretion of Congress, the power to 
acquire territory for that purpose, to be held by the United 
States until it is in a suitable condition to become a State 
upon an equal footing with the other States, must rest upon 
the same discretion." 

Having thus shown that there is no warrant in the Con- 
stitution for the establishment or for the maintenance of 
colonies or of dependencies, the next question to be considered 
is whether or not there is any other ground upon which such 
legislation by Congress can be justified. As the advocates 
and the supporters of this new policy have utterly failed to 
indicate that there is any provision in the Constitution which 
authorizes it either expressly or by necessary implication, 
they have promulgated a new doctrine in American constitu- 
tional law which may be called " the theory of inherent 
sovereignty in the United States Government." This doc- 
trine asserts that in addition to the express or implied 
powers of the Government conferred upon it by the Con- 
stitution it possesses certain other powers not depending 
upon grant but derived or resulting from the mere fact of its 
being a Government exercising governmental functions and 
that by virtue of this fact it can do whatever any other Gov- 
ernment in the world can do. According to this doctrine 
the power to acquire territory is an attribute of national 
sovereignty possessed by all independent Governments, that 
as this power was not reserved by the States of the Union it 
exists only in the Federal Government without limitation 
and that in the right to acquire territory is found the right 
to govern its inhabitants either with or without their con- 
sent as Congress in its discretion may determine. 

Upon this new theory of our Government the present 
administration and its supporters rely in order to justify the 
establishment and the maintenance of a colonial system by 
the United States. If this theory be the true one there is no 
limit to the jurisdiction of the Federal Government ; and 
therefore, the specific enumeration of powers contained in 
the Constitution is entirely unnecessary ; and the power of 



25 

Congress is as absolute as is that of the British Parliament ; 
and there is no method by which its action can be restrained 
or defeated by the people. The mere statement of this 
doctrine carries its own refutation with it ; and so it is un- 
necessary to occupy time or space in exposing its utter 
untenableness and absurdity. It is sufficient to call the 
attention of the reader to the fact that this Government was 
not formed or patterned after any European model; nor was 
it designed to exercise many even of those powers of sover- 
eignty previously vested in the Governments of the several 
States which had combined to constitute the United States 
of America. It is true that we are a sovereign nation and 
according to international law the equal of any other nation 
on the face of the globe ; but we are nevertheless a re- 
public and not an empire or an absolute monarchy ; and we 
have deliberately chosen to establish a Government of limited 
powers ; and these cannot be increased in the least degree 
except by a constitutional amendment. And until such an 
amendment shall have been adopted by the people of the 
United States the Government thereof can exercise only 
those express or implied powers which the Constitution 
confers upon it, as has been already stated in a previous part 
of this article. 

In support of this contention the writer will quote the 
following extracts from certain opinions of the Supreme 
Court. In the case of United States v. Fis/ier, 2 Cranch, 
358, 396, Chief Justice Marshall, who delivered the opinion 
of the court, remarked : — 

" It has been truly said that under a Constitution con- 
ferring specific powers, the power contended for must be 
granted, or it cannot be exercised." 

The same great judge, in the case of McCidloch v. The 
State of Maryland, 4 Wheaton, 316, 405, said : — 

"This Government is acknowledged by all to be one of 
enumerated powers. The principle that it can exercise only 
the powers granted to it would seem too apparent to have 
required to be enforced by all those arguments which 
its enlightened friends, while it was depending before the 



26 

people, found it necessary to urge. That principle is now 
universally admitted." 

In the case of Martin v. Hunter, i Wheaton, 304, 326, 
Mr. Justice Story, speaking for the court, said : — 

"The Government of the United States can claim no 
powers which are not granted to it by the Constitution ; and 
the powers actually granted must be such as are expressly 
given, or given by necessary implication." 

In the case of Briscoe v. The Bank of Kentucky, 1 1 Peters, 
257, 317, the court said : — 

"The Federal Government is one of delegated powers. 
All powers not delegated to it, or inhibited to the States, 
are reserved to the States or to the people." 

In delivering the opinion of the court in Hepburn v. Gris- 
wold, 8 Wallace, 603, 611, Chief Justice Chase said : — 

"All the legislative power granted by the Constitution 
belongs to Congress ; but it has no legislative power which 
is not thus granted."* 

This being the law, it is difficult to perceive how the 
colonial policy of the administration can be in accordance 
therewith. It is one thing to enlarge the Union by the 
admission of new States thereinto ; but it is another and 
quite a different thing to enter upon the government of 
colonies or of dependencies in various parts of the world. 
The Constitution provides in Section 3 of Article IV. that 
"New States may be admitted by the Congress into this 
Union " ; but it nowhere provides that colonies or provinces 
may be established by that body ; and therefore, applying the 
above-quoted decisions of the court to the matter under 
consideration, we must conclude that all legislation which is 
designed to accomplish that result is unconstitutional and 
consequently, null and void. 

Another doctrine of quite recent origin will now be con- 
sidered, as the friends of the administration rely upon it 
also in order to justify the government by us of our newly 
acquired Territories. Failing to find any warrant in the 
Constitution for this policy, they now contend that it can 

•See also United States v. Harris, 106 U. S., 629, 635, 636. 



27 

be justified on the ground that the provisions of that instru- 
ment do not extend ex proprio vigore to the new Territories 
acquired by the United States and that therefore, Congress 
in legislating for them is not restrained thereby unless the 
Constitution should be extended to them by means of a 
statute. 

Conceding that the first part of this proposition is true, 
the second, which is the conclusion sought to be drawn from 
it, by no means follows ; for as the Constitution was made 
by and for the States only, it can have no force beyond the 
limits of the Union ; and so it cannot be carried by Congress 
into other countries if it is not already there. This asser- 
tion is supported by the following sentences which are taken 
from a speech of Daniel Webster delivered in the Senate on 
February 24, 1849: — 

"The Constitution is extended over the United States 
and over nothing else and can extend over nothing else. It 
cannot be extended over anything except over the old States 
and the new States that shall come in hereafter when they 
do come in." * 

On the same point, Prof. Langdell, in the article from 
which an extract has just been quoted, on page 371 of the 
Review, says : — 

"The Constitution of the United States as such does not 
extend beyond the limits of the States which are united by 
and under it." 

As all the laws of the United States in order to be valid 
must be made in pursuance of the Constitution and must 
also be in harmony with and subordinate thereto, they can- 
not extend where it does not except by the*free consent of 
the people who are therein sought to be brought under 
them. This doctrine, like those previously considered, is 
wholly untenable; and therefore, it affords no justification 
for the establishment of a colonial system by the United 
States. 

Of course the writer freely concedes that the Constitution 
may be applied to the Territories by and with the consent 

* Appendix to the Congressional Globe, Second Session, Thirtieth Congress, page 273. 



28 

of their inhabitants but not otherwise; for although the 
war and the treaty-making powers of the Government 
authorize the acquisition of territory, according to inter- 
national law the allegiance of the people residing thereon 
cannot be transferred from their old sovereign to a new one 
unless they assent thereto.* This assertion does not mean 
that such assent must necessarily be expressed by a formal 
vote of those people; but it may be implied from their silence 
or from their conduct. All territory acquired by either of 
the methods just mentioned must be held and its inhabitants 
must be governed subject to our Constitution ; but neither 
of these methods can increase or diminish the powers con- 
ferred by that instrument upon the Federal Government or 
upon any department thereof. As the Supreme Court has 
said, " Every nation acquiring territory, by treaty or other- 
wise, must hold it subject to the constitution and laws of 
its own Government and not according to those of the 
Government ceding it." f Consequently, the United States 
in accepting sovereignty over these Territories must do 
so subject to all the restraints in the exercise thereof 
which the Constitution imposes upon it ; and the guaranties 
as to civil and personal rights therein contained must 
be secured to all of their citizens. As two of the objects 
for which the Constitution was ordained and established, 
as specified in the preamble thereto, were "to establish 
justice" and "to secure the blessings of liberty to our- 
selves and our posterity," every provision thereof ought to 
be construed so as to insure those objects in every part 
of our domain ; and it ought also to be enforced in all the 
Territories which are under our jurisdiction so far as its 
provisions are applicable thereto. The Supreme Court has 
held in Murphy v. Ramsey, 114 U. S., 15, 44, 45» that " The 
personal and civil rights of the inhabitants of the Territories 
are secured to them, as to other citizens, by the principles of 
constitutional liberty which restrain all the agencies of gov- 

•HaHeck's "International Law," Vol. II., pp. 473, 474. and 475; Phillimore's "Com- 
mentaries upon International Law," Vol. III., p. 871; Sir Sherston Baker's "First Steps in 
International Law," pp. 60, 61. 

1 Pollard's Lessee v. Hagan, 3 Howard, 212, 225. 



29 

ernment, State and National ; their political rights are 
franchises which they hold as privileges in the legislative 
discretion of the Congress of the United States." * This 
being the law, it ought to be as rigidly enforced in the 
new Territories as it always has been in the old ones ; and 
if that be done, there can be no denial to the Hawaiians, 
the Porto Ricans or the Filipinos of any of the rights, privi- 
leges and immunities which are enjoyed by the people who 
reside in the other Territories of the United States. 

If the views above expressed by the writer are well 
founded, the sovereignty which the Federal Government 
possesses over the people of the Territories is derived not 
from the Constitution but from their' free consent, although 
that sovereignty must be exercised in accordance with, and 
not independently of, the provisions of that instrument. As 
the Porto Ricans are willing to be governed by the United 
States our Constitution extends over them so far as it can 
do so ; and they are entitled to the same rights, privileges 
and immunities which are enjoyed by the residents of the 
other Territories who are likewise willing to be governed 
by us. But as the Filipinos do not consent to be subject to 
the United States our Constitution does not and cannot be 
made to extend to them until they shall have voluntarily 
acknowledged it to be binding upon them. So that in either 
case the sovereignty of the United States over the people 
of the ceded Territories is not and cannot be derived from 
the Government of Spain but only from those people them- 
selves. Any other theory than this is inconsistent with 
the fundamental principles upon which our Government 
was founded. 

Having thus shown that the Constitution as it now reads 
does not provide for colonies or for dependencies, let us 
next inquire whether or not it can be so amended as to 
insure that object. But before entering upon that discussion, 
it should be said that if the theory of inherent sovereignty 

* Some of the other decisions of the court sustaining this proposition are those rendered in 
the following cases: Webster v. Reid, 11 Howard, 437; Reynolds v. United States, 98 U.S., 
145; American Publishing Company v. Fisher, 166 U.S., 464; Springville v. Thomas, 
U. S., 707 ; Thompson v. Utah, 170 U. S. 343. 



in the United States Government already considered herein 
be true, no amendment to the Constitution is necessary in 
order to enable Congress to legislate upon this subject ; for 
according to that doctrine it already possesses all the 
authority which is required for that purpose. But waiving 
that point the question arises, How can the power to govern 
the people of other countries without their consent and 
against their will be created by an amendment to our Con- 
stitution if it does not already exist ? If such a government 
would be unjust, could it be made just in the manner pro- 
posed ? Manifestly not. The people of the United States 
in adopting the Constitution established a Government for 
themselves only; and -they have an undoubted right to 
delegate thereto such additional powers as in their judgment 
may be necessary to promote their own welfare and happi- 
ness ; but they cannot delegate to it the authority to govern 
an unwilling people without a complete revolution in the 
nature of the Government itself. So that although such an 
amendment may be adopted, it would neither justify the new 
system nor be of any practical advantage to us in our efforts 
to administer it, as a strong military force would still be 
necessary for that purpose. Besides that, as the process of 
amending the Constitution is exceedingly slow and difficult, 
that proceeding would be entirely impracticable. What, 
then, ought to be done under existing circumstances ? As 
our citizens have had no opportunity to make known their 
will by their ballots in regard to the policy of expansion or 
of imperialism only at any election heretofore held but have 
been required to vote upon other issues arising in the several 
States, that question pure and simple ought to be submitted 
to them as soon as that can be done so that they may decide 
whether or not the foreign policy of the administration 
shall receive their approval. If that question should be so 
submitted to them, the writer has sufficient confidence in 
their wisdom and in their patriotism to cause him to believe 
that they will condemn that policy and will reaffirm the 
truth of the Declaration of Independence by an overwhelm- 
in- majority. 



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